In the Indian criminal justice system, bail releases a defendant from custody under specific conditions pending trial. Based on the case, the judge can grant bail. Non-bailable offences require a bail application.
Lower courts have adopted the Supreme Court of India’s non-bailable bail guidelines. These guidelines are controversial and criticised. This article examines the Supreme Court’s bail guidance for non-bailable offences and its applicability.
Bail allows a suspect to be released from custody pending trial. The CrPC controls bail in India. Non-bailable offences do not have bail rights.
The accused can request a hearing. This article discusses the procedure of granting bail on non-bailable charges in India, the criteria judges evaluate, and the conditions under which the accused may be placed while on bail. We’ll also review current bail case law for non-bailable offences and its impact on India’s criminal justice system.
Non-Bailable Offense Guidelines:
The Supreme Court of India has standards for bailing irredeemable offenders. Guidelines include:
Type of the offence: The seriousness of the offence is the main factor in bail decisions. Bail is unlikely for serious crimes.
Strong evidence against the accused: Conviction is less likely. The court may admit weak or circumstantial evidence.
Character and reputation: The accused’s criminal record, character, and reputation are also examined while granting bail. Bail may be granted if the accused has a clean record.
Possibility of absconding: The judge is less likely to grant bail if the accused may flee.
Danger to witnesses or the public: The court will not grant bail if the accused will endanger witnesses or the public.
Bail may be granted if the accused has served time in prison.
Critical Examination of Guideline Implementation:
The Supreme Court’s bail standards for irredeemable offences have been contested and debated. Opponents believe judges’ discretion results in unfair and unequal treatment of the accused and that the standards are regularly ignored.
Lower courts often ignore bail guidelines. Judges award bail differently due to their discretion. The accused are treated differently depending on the judge.
Lower courts are confused and unclear since the rules don’t provide enough information. For instance, some judges prioritise the strength of the evidence against the accused, while others emphasise the sort of evidence to be presented.
The accused have been treated inconsistently and unfairly. The bail system is also being misused by individuals who can afford the best legal assistance. Moneyed defendants receive bail faster than unrepresented ones.
History: The British colonial Criminal Process Law of 1861 established bailable and non-bailable offences in India.
The Criminal Code distinguishes between bailable and non-bailable offences. Only murder, rape, and fraud were initially non-bailable. Over time, non-participatory offences have grown to cover various offences.
The Code of Criminal Procedure was revised in 1973 to allow non-bailable defendants bail under certain conditions. They include the nature of the offence, the possibility that the accused would flee or tamper with evidence, and the public risk the accused poses.
The Criminal Code (Amendment) Bill of 2017 changed recoverable and non-recoverable offences in India. The statute created “compoundable offences,” which allow the victim to bargain with the offender and receive bail. Rape and sexual assault penalties were doubled and made unpunishable by the legislation.
India’s classification of charges as imprisonable or non-bailable changes periodically to reflect crime and the country’s socio-economic and political context.
Non-bailable offences India:
India has bailable and non-bailable offences. Bond is provided at the court’s discretion for non-bailable charges, whereas bail is a right for bailable ones. In the Code of Criminal Procedure, 1973, bailable and non-bailable offences are classified as follows:
Offenses punishable by less than three years in jail are bailable.
For instance, hurting, stealing, cheating, and plain assault.
Offenses that carry a three-year jail sentence are non-bailable.
Including murder, rape, dacoity, and kidnapping. Nonetheless, non-extraditable offences can potentially incur a sentence of less than three years. Some offences punishable by three years or more may may be imprisoned at the court’s discretion.
Even in non-indictable offences, the accused has the right to apply for bail, and the court may consider the nature of the offence, the severity of the punishment, the likelihood that the accused will escape, and the likelihood that the accused will interfere with the investigation or tamper with evidence.
The Code of Criminal Procedure CrPC lists bailable and non-bailable offences in India.
Causing simple hurt—Section 323 Voluntarily causing hurt—Section 324 Theft—Section 379 Mischief causing property damage—Section 427 Assault or criminal force to deter a public servant from discharging his duty—Section 353 Causing death by negligence—Section 304A Criminal breach of trust—Section 406 Forgery
Non-Bailable Offenses: Murder (Section 302)
Kidnapping, robbery, rape, and attempted murder are offences under the 1985 Narcotic Drugs and Psychotropic Substances Act.
Offenses under the 1988 Prevention of Corruption Act
This is not an entire list, and other offences may be bailable or non-bailable depending on severity and other considerations. Depending on the case and the court’s judgement, an offence may be bailable or non-bailable.
Compared to UK and US: Offenses are not classed as bailable or non-bailable in the UK and US. Instead, trials are focused on the severity of the offence, the possibility that the accused would flee, and the threat the accused poses to society.
UK bail legislation is governed by the Bail Act 1976. Under certain conditions, an accused can be released on bail before trial. The offender may be freed on bond if the court is satisfied that a trial will be held and no further offences will be committed or witnesses or evidence will be tampered with. The court may deny bail if the offence is significant or the defendant is likely to flee or commit another crime.
Pretrial release or custody in the US is decided by state or federal law, depending on the jurisdiction. The accused is entitled to pre-trial release unless they are a flight risk or public hazard. A release may be conditioned on wearing an electronic monitoring device or staying away from specified places or people.
The nature of the offence, the accused’s criminal history, the weight of the evidence against them, and the risk of escape or entanglement all influence the decision to release or grant pre-trial custody in both the UK and the US. Based on the case, the court decides.
Debate topics in Parliament:
The Code of Criminal Process, 1973 defines bailable and non-bailable offences in India.
The following Indian constitutional concerns can be debated:
Conditions for bail:
In the doubtful, the courts’ bail criteria for charges that can and cannot be collected can be a major issue. The gravity of the offence, the likelihood of the accused fleeing or tampering with evidence, and the accused’s criminal record are considered by Indian courts.
Offenses not bailable:
Murder and rape are not automatically punishable in India. The debate could address whether bail provisions should be made in such circumstances and what criteria should be utilised to determine whether an accused can be granted bail for non-bailable errors.
Special bail laws:
The Prevention of Money Laundering Act and the Unlawful Activities (Prevention) Act of India have rigorous bail restrictions. Whether such restrictions are required to deal with significant violations under this act or excessively harsh and encroach on the accused’s rights may be debated.
Trial delay and bail: Another issue is how trial delay affects the accused’s right to bail. Delays in trial can lead to bail in India. The debate could centre on whether such a delay should be considered when granting bail to an accused and whether there should be a predetermined timeframe for criminal trials.
Balancing the accused’s and victims’ rights: The argument may also involve the necessity to balance the accused’s and victims’ rights. While the accused has the right to be assumed innocent until proven guilty, they also have the right to a timely and fair trial and to seek justice for their harm. How the law balances these rights can be debated.
Overall, India’s legislative debate on bailable and non-bailable offences may give legislators a chance to review existing statutory provisions and make any necessary modifications to ensure the criminal justice system’s impartiality and efficiency.
India’s bail procedure for non-bailable offences differs from that for bailable offences. The accused cannot receive bail for non-bailable offences. Yet, the accused may request a hearing.
India grants bail bonds for non-bailable offences:
The accused or their lawyer must petition the court with jurisdiction.
The court will assess the bail application and the case’s facts and circumstances, including the type and gravity of the offence, the evidence against the accused, and the likelihood that the accused may dodge justice, tamper with evidence, or influence witnesses.
The accused’s prior experience, case complexity, and public and accused interests may also be considered by the court.
The court may imprison the accused if there are reasonable grounds to believe they are not guilty of the alleged offence or unlikely to commit any offence while on bail.
The court may require the accused to produce a personal statement or collateral, relinquish his passport, report periodically to the police, avoid contact with witnesses or the appellant, and stay within the court’s jurisdiction before granting bail.
The court may also force the accused to deposit a set amount of money as security, which will be forfeited if the order is violated.
With non-bailable offences, bail is optional and relies on the case. If the court suspects the accused will leave, tamper with evidence, or influence witnesses, it may deny entry.
Analysis of Supreme Court guidelines:
The Supreme Court’s orders on bail for non-bailable offences are complicated. Non-guaranteed violations in India are more serious and punished harshly. The law implies an accused should not be given bail unless there are special circumstances. Nonetheless, the Supreme Court has established fair and just bail requirements over the years.
How to assess the offence’s magnitude was one of the Supreme Court’s directions. The court must evaluate the nature of the offence, the severity of the sentence, the victim’s and society’s impact, and the accused’s potential to tamper with evidence or influence witnesses while deciding on bail.
The court has also ordered the lower courts to evaluate the accused’s antecedents, the likelihood of absconding, and the likelihood of recidivism.
The Supreme Court also considers prison term. The court has highlighted that a longer term of imprisonment should not be refused because the accused has been imprisoned for a longer time. A bail application’s period of incarceration is simply one factor, according to the court.
The Supreme Court also considers the accused’s health, age, evidence, and financial situation when granting bail. The court has also stressed that bail’s objective is to assure the accused’s presence at trial, not punishment.
Nonetheless, interference has been denied for irredeemable offences. In certain circumstances, the offender was denied bail for too long. The accused is severely prejudiced because the period of jail constitutes a punishment.
It’s crucial to follow the Supreme Court’s recommendations to resolve these concerns. While resolving a remand application, lower courts should be reminded to consider all relevant factors. A system should also monitor lower courts’ compliance with Supreme Court orders.
The law should also be changed to prevent bail from being arbitrarily granted or used to harass the accused. The ability to bail is a fundamental right that must be urgently restored.
Conclusion: Non-bailable criminal bail has long been debated in the legal system. The Supreme Court’s guidelines on bail for non-bailable offences are difficult to apply.
The lower courts’ uneven interpretation and application of guidelines has led to arbitrary refusal of intervention. The lack of clear and explicit criteria for case qualification has also caused confusion and uncertainty in decision-making.
Despite the guidelines, the court’s bail decision has often been impacted by the accused’s socio-economic background and the nature of the offence. In conclusion, the Supreme Court’s ruling on bail for non-bailable offences promotes justice and fairness in the legal system.
Its implementation requires consistent and equitable interpretation by subordinate courts and clear criteria for bail eligibility. Parole decisions should not be based on socioeconomic standing.
Also Read 1. Shocking men face rape too
